RAM EKBAL RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 14.3.2002 passed in Raghunathpur RS. Case No. 71 of 1999. by Chief Judicial Magistrate, Siwan by which the learned Magistrate has refused to proceed under section 210 of the Code of Criminal Procedure on a protest petition filed on behalf of the petitioner.

(2.) IT has been submitted on behalf of the petitioner that the learned Magistrate while passing the order did not take into consideration the question of fact and law raised by the counsel for the petitioner and by a cryptic order ignoring the direction made by this Court disposed of the protest petition saying that once cognizance taken, the court had no jurisdiction to further take cognizance against the accused persons. The court should have proceeded under section 210 of the Code of Criminal Procedure (for short the Code). The court should have treated the protest petition as complaint case and should have amalgamated the cases treating as if both the cases were instituted, on the police report. Clause 3 of section 210 further envisages that if the police report does not relate to any accused in the complaint case and if Magistrate does not take cognizance of any offence on the police report, he shall proceed with the enquiry on trial, which rather was stayed by him in compliance with the order of the High Court. It has further been submitted that the learned court below ought to have taken into consideration that the cognizance is taken of the offence and not of the offenders, if the cognizance once was taken of the offence, there was no impediment for the learned Magistrate to summon the other accused persons if the materials against other accused persons were also available in the police report to show their complicity in the offence.

(3.) AS submitted by the learned counsel for the petitioner, the Magistrate should have treated the protest petition filed by the petitioner/informant as complaint petition and should have considered the matter.